By Harnessing The Collective Expertise Of Leading Minds And Benchmarking Best Practices, CPR Is The Resource Of Choice (MCC)

August 2, 2011

The Metropolitan Corporate Counsel (MCC)
SPECIAL SECTION ADR
August 2011

by Kathy Bryan

The Editor interviews Kathy Bryan, President and CEO, International Institute for Conflict Prevention and Resolution (CPR).

Editor: Are companies hiring more heads of litigation who play a role similar to your former role at Motorola?

Bryan: Actually, it depends on the size of the company and the size of their litigation portfolio. I would say that companies are becoming very flat in terms of their reporting. You tend to see heads of litigation where companies have larger litigation groups. However, in some cases, companies with smaller litigation groups have found that having a head of litigation facilitates sharing of best practices among the heads of various practice groups within the legal department.

Editor: Is international, cross-border dispute resolution the next big topic in ADR?

Bryan: Yes. The number of cross-border disputes is growing. In today’s world, supply chains frequently reach beyond country boundaries, and companies now serve worldwide markets. This has produced a proliferation of cross-border contracts and a focus on dispute resolution clauses that address the unique concerns of these parties.

The rest of the world is worried about litigation in the United States because of the costs, including those resulting from eDiscovery and the possibility of bet-the-company verdicts. U.S. companies are very concerned about doing business where the rule of law is weak or there is bias in favor of local companies.

ADR is viewed as offering the perfect solution. Arbitration offers a neutral environment with enforcement capability. The United States was once the dominant source of new ideas with respect to dispute resolution. Today, there is much that we can learn from other countries.

For example, CPR has recently launched a survey of companies and law firms in the Asia-Pacific region to examine the kinds of things that CPR and others can do to promote effective mediation in these areas. Cultural issues in Asia may cause mediation to look very different than it does in the U.S.

One of the biggest problems in many court systems outside the U.S. is delay. Mediation provides a way for parties to achieve a better result more quickly than in the court system.

Editor: Does CPR have relationships with comparable organizations in other countries?

Bryan: We have recently assembled a European advisory board chaired by Jean Claude Najar from General Electric. It will examine what role CPR will play in the fairly well-developed mediation culture found in the UK and in other European countries, and how it can develop alliances with organizations within these countries who have missions similar to that of CPR.

We are also working on alliances with similar organizations in China and in Brazil in which we share with them our knowledge about best ADR practices and, in return, they share their own experiences with ADR in their countries. This cross-fertilization process will be beneficial to everyone involved.

Editor: CPR is dedicated to advancing diversity in the selection of neutrals. How is this being implemented?
Bryan: CPR started its National Task Force on Diversity in ADR in 2006. It brought together a very large group of prominent mediators, arbitrators and users of mediation and arbitration to look at how we can promote diversity in the selection of neutrals.

The Task Force takes a three-pronged approach: (1) increasing the demand for diverse neutrals, (2) increasing the level of diversity within the ranks of sophisticated neutrals, and (3) educating users on the importance of thinking in diverse terms when selecting neutrals. We provide companies with an audit to measure their own and their outside counsels’ use of diverse neutrals. We also provide awards to individuals who have promoted diversity among neutrals in an effective way.

We have started work on mentoring and sponsorship programs designed to help neutrals on our Panels of Distinguished Neutrals, as well as neutrals outside of CPR, to build their practices in ways that will work most effectively for them, and we have taken steps to assure that diverse neutrals are included in this effort. We are also focusing on recruiting more diverse neutrals for our panels. We are progressing in that, but I am still not satisfied with the results.

Editor: How does CPR help in the selection of neutrals?

Bryan: CPR offers a broad spectrum of low-cost and highly effective tools and services to help parties select the right neutral for their matter and to create and customize the best and most flexible process to meet their needs. We have a sophisticated selection process conducted by an experienced attorney with a thorough vetting and pre-screening procedure.

CPR is the leading proponent of self-administered ADR processes that allow the parties to better control risk and cost while achieving superior results. We launched a new website that has additional search and information capabilities. We assure that the neutrals on our 23 specialty panels are peer reviewed, and that the level of qualification in each specialty area is verified by both users and peers. Just a few months ago, we launched our new National Panel.
This is a panel of the most highly skilled of our neutrals.

There are many different considerations that go into selecting neutrals – such as geography, specialization, type of dispute, complexity of the issues, etc.

Our new user-friendly due diligence checklist provides guidance to users considering hiring a mediator or an arbitrator. When you are considering selecting a neutral, you can just pick up the checklist and see how the neutrals you are considering stack up.
Editor: Is CPR looking at psychological and neurological factors that affect dispute resolution?

Bryan: There is a growing body of research that enables us to better understand how such factors affect the dispute resolution process, including sophisticated brain mapping and other techniques. This is a subject that is hugely interesting for mediators, arbitrators and all those interested in how to prevent and mitigate conflict. Ben Picker, one of CPR’s own outstanding neutrals, pointed out in an article in The Metropolitan Corporate Counsel that the tendency of disputants to fall in love with the merits of their cases can stand in the way of resolving disputes.

To the extent that we better understand how the brain works, we can more effectively determine how we can help disputants overcome the kinds of bias and emotional hijacking that can derail conflict resolution. CPR has made available a number of webcasts on the science of conflict resolution and plans to focus on this subject at future meetings. Last year, we gave Professor Richard Birke a writing award for his seminal work “Neuroscience in Settlement: an Examination of Scientific Innovations and Practical Applications.”
Editor: Tell us about CPR’s new book on mass claims.

Bryan: In April, we published a book on mass claims resolution facilities prepared by CPR’s Commission on Facilities for the Resolution Of Mass Claims, chaired by Deborah Greenspan and Kenneth Feinberg with Jordana Feldman serving as reporter and principal author. The book is a comprehensive guide for litigants, practitioners, neutrals, courts and everyone else involved in mass claims in many different contexts. In a step-by-step way, it addresses relevant issues, including how to structure the claims process and what ethical issues need to be considered. It is a full examination of best practices that provides valuable tips about what has actually worked by people who have been doing mass claims work for a long time.

Bryan: We have had excellent feedback. In my discussions with different companies that have used it, they frequently mention its value and how they have adapted it to meet their special needs, which is precisely what we had in mind. In fact, there was so much interest that we developed a similar tool in conjunction with LexisNexis.
Editor: What role does eDiscovery play in ADR?
Bryan: Our arbitration committee recently issued a Protocol governing information exchange in the context of arbitration. It encompasses document discovery as well as witness interviews. It achieves proportionality by allowing the parties to agree on the level of discovery or disclosure in arbitration to match the needs of the individual matter. These modes of disclosure, which can be used with any arbitration rules, allow the parties to pick one of four different levels of document exchange and four different levels of witness presentations based on the needs of the particular case. In so doing, it addresses the criticism that the Federal Rules of Civil Procedure, which apply in court, do not provide for proportionality. For that reason, our Protocol has been eagerly received.
Editor: How important are the specialized committees that CPR has set up to look at ADR issues that affect specific industries?
Bryan: All of our committees play a vital role in examining ADR application and evolution in a practical and business-centric way. CPR is a think tank whose work is generated through our committees, both those that affect all disputants and those that are industry specific. For example, we have a new Banking and Finance Committee that has met several times to look at how ADR can be best applied in resolving the many disputes that affect financial institutions.

Editor: How is CPR coping with the proliferation of new issues affecting all businesses?

Bryan: We have just started a new Mediation Committee to focus on issues of interest in the field of ADR, both domestic and international. Of course, our Arbitration Committee remains our most prolific committee producing numerous products, protocols and procedures. In addition, CPR’s Executive Advisory Committee is now focusing on how to promote the use of ADR in resolving disputes with the government, as well as how multi-stakeholder disputes can be resolved more effectively.

In this era of the evolution of dispute resolution, many of the issues are getting more complicated to address. For example, we are looking at how you resolve patent cases through mediation at an earlier stage. Our Patent Mediation Task Force is chaired by Manny Schecter, the chief IP counsel for IBM.

The Task Force is working on protocols that will encourage the use of mediation in patent cases.

We are also addressing product liability issues through our Product Liability Committee. This committee is looking at ways to use mediation and other early resolution techniques more effectively in product liability cases. We are also taking steps to address outsourcing disputes, which is an area of rising concern.

Editor: I would assume that CPR is as attractive for plaintiffs’ counsel as it is to a defense counsel.

Bryan: Both have an interest in getting a resolution at the right time and utilizing ADR more effectively. Many attorneys that sit on a plaintiffs’ seat, some or all the time, are on our Employment, Franchise, Product Liability and Patent Committees.

Editor: One of the complaints about arbitration is that some neutrals delay the proceedings. What is being done to address this?

Bryan: Last year, we issued expedited rules that provide for the resolution of a dispute in a maximum of six months. If you go with one arbitrator it’s going to be faster than if you go with three. CPR takes great care in looking for hearing dates that are consecutive and assuring that the arbitrators are available when the parties need them. Notwithstanding the complexity of the matters in which parties seek CPR’s assistance with the selection of a neutral or panel, our records indicate that those cases are resolved in an average of 11 months.

We’re also developing a protocol on early disposition of issues and plan to provide sample case management tools for arbitrators.

Editor: Tell us about some of the new developments?

Bryan: Our Economical Litigation Agreement was launched in January at our annual meeting. It is an agreement between two businesses that allows them to take advantage of the efficiency of arbitration with the benefits of a trial should they need it. The pretrial mechanism is covered in the agreement and provision is made for a discovery arbitrator. Combining those two things is a revolutionary concept.

Our young ADR program has held numerous events in the U.S. and abroad, including Paris and London. This group brings together young lawyers and corporate counsel to talk about their experiences with and views on dispute resolution.

Bryan: We generally stay neutral in view of our role as a think tank. However, there are sometimes issues where we do weigh in – we expressed our concerns about the Arbitration Fairness Act, for example. We occasionally take amicus positions, but not all that often.

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Kathleen Bryan is the President and CEO of the CPR Institute (CPR). CPR is the leading independent resource for global businesses and their lawyers seeking to improve the resolution of complex commercial disputes. By harnessing the collective expertise of leading minds and benchmarking best practices, it is the resource of choice for multinational corporations with billions of dollars at risk. CPR is also a
leading online destination for counsel seeking highly credentialed arbitrators and mediators and practical ADR resources and solutions. Learn more at www.cpradr.org.